Volume 59 Number 10 
      Produced: Tue, 31 Aug 2010 04:37:19 EDT

Subjects Discussed In This Issue:

"Statement of Principles" regarding homosexuality (2)
    [Lisa Liel  Keith Bierman]
Fixed Seat in shul (3)
    [David Ziants  Menashe Elyashiv]
Women Davening (was To the males of this list -) 


From: Lisa Liel <lisa@...>
Date: Mon, Aug 30,2010 at 06:01 PM
Subject: "Statement of Principles" regarding homosexuality

Orrin Tilevitz <tilevitzo@...> wrote (MJ 59#09):

> Lisa Liel wrote (MJ 59#08):
>> They [i.e., halachic principles] do not justify assuming that 
>> people who are gay, even if they are in committed relationships, 
>> are committing sins in private.
> Let's say a man lives in a apartment with three unmarried women (I 
> think that eliminates the automatic issue of yichud). Let us further 
> assume that it is known that none of the women go to the mikveh. One 
> sees no public displays of forbidden physical contact between the 
> man and any of the women. At what point, if any, may one assume that 
> they are committing sins in private? If there is such a point, how 
> is that case different?

I don't think it is very different.  That's a good example, actually 
(mostly).  I actually know people who've been in that situation.  If 
they are stam [ordinary run-of-the-mill - MOD] people, I'd assume at least some
hanky-panky might be going on.  But if they're frum Jews, I'd assume that they
were taking whatever steps were necessary to avoid violations of halakha.

But we know that men are choshed (suspect) when alone with women.  Women are not
choshed when alone with other women.  Nor does the same corpus of halakha which
forbids nashim ha-mesollelot say otherwise.  Particularly when there's no
demonstrative physical contact with them in public.  Even Rambam says a man
should keep his wife away from women only if it's known that they engage in
nashim ha-mesollelot.  Not if they're gay.

There are halakhot dealing with the benefit of the doubt.  Check out 
Rav Pliskin's _Guard Your Tongue_, or Rebbetzin Samet's _The Other 
Side of the Story_.  Of course, it's possible to be meikil (lenient) 
on this obligation, and unfortunately, it seems that such is the rule 
rather than the exception, but that's a social and cultural problem.


From: Keith Bierman <khbkhb@...>
Date: Mon, Aug 30,2010 at 07:01 PM
Subject: "Statement of Principles" regarding homosexuality

Orrin Tilevitz <tilevitzo@...> commented (MJ 59#09):

> Let's say a man lives in a apartment with three unmarried women (I think that
> eliminates the automatic issue of yichud). Let us further assume that it is
> known that none of the women go to the mikveh. One sees no public displays of
> forbidden physical contact between the man and any of the women. At what point,
> if any, may one assume that they are committing sins in private? If there is
> such a point, how is that case different?

If the people are sharing a house, but with separate bedrooms (a la a
dorm) I would argue we should assume the best.

If it's a single bedroom, perhaps the guidepost should be how many
beds (bunk beds vs. one large bed as extremes). In my youth I stayed
in co-ed hostels, and while others may have had "more fun" it was just
a cheap (albeit not terribly comfortable) safe place to sleep. Staying
together as a group made us feel a lot safer than trusting strangers
with our valuables.


From: David Ziants <dziants@...>
Date: Mon, Aug 30,2010 at 06:01 PM
Subject: Fixed Seat in shul

I feel I need to do some defending now in reply to Carl (MJ 59#08).

Most out-of-town guests, here, would have a host with them. It is not 
like a big city where people can come from anywhere, but this is a small 
and relatively isolated neighbourhood of Ma'aleh Adumim. I think that 
they adopt this policy is to encourage neighbours who want to come on a 
regular basis on Shabbat, to become members and also not to offend 
well-standing members who are going to have their place snatched by 
someone else. Sometimes it can affect a newcomer to the neighbourhood, 
but these are also usually well looked after by old-timers.

The situation where I find myself going to this is shul shabbat morning, 
is if we are invited to a bar-mitzva. Then I know the protocol, and the 
person who does the seat allocation often knows which people are away, 
go to early minyan, etc.

On Shabbat morning, I still feel more comfortable in the shul where I 
pay yearly membership.


From: Alexander Seinfeld <seinfeld@...>
Date: Tue, Aug 31,2010 at 02:01 AM
Subject: Fixed Seat in Shul

Carl Singer <carl.singer@...> wrote (MJ 59#09):

> Does anyone contend that occasionally not sitting in one's makom kevuah (for
> a supposedly valid reason) negates that mitzvah, or that the mitzvah (if it
> is one) of giving one's seat to a guest (thus the mitzvah of welcoming a
> guest or a stranger) should be ignored at the expense of this mitzvah?

Or how about the prohibition against embarrassing someone?

It is highly embarrassing to be asked (told) to move when you are a stranger
in shul. 

If you ever asked someone to move out of your seat, you may have been guilty
of a serious aveira (sin) and need to ask their forgiveness.

By the way, most people think that "makom kavua" means a specific seat. It
actually means within 4-amot (about 6 feet) of your normal seat. So if you
sit in the row in front or behind, you are still 100% in your "makom kavua".

Therefore needing to be in an exact seat is more of a conceit than a Jewish

From: Menashe Elyashiv <Menashe.Elyashiv@...>
Date: Tue, Aug 31,2010 at 02:01 AM
Subject: Fixed Seat in shul

We have some fixed places, and some that are still not fixed. Our policy 
is that due paying members get a fixed place all year, including the High 
Holidays. As there are many synagoges in the neighborhood, all of them 
want paying members, and not free lancers that do not support them. We 
have expenses: electricity and cleaning (we manage not to pay for water). 
We do not pay Torah readers or Hazzanim. 

Of course, should some visitor sit in a fixed place, then no one would say 
any thing to him. I do try to point visiters to empty seats. Even on the 
High Holydays, we have a few empty places for soldiers or firemen that can 
get out to pray.

BTW, last year, we were not able to open the womens section because we 
received our new building on Erev Rosh Hashana afternoon. On Yom Kippur 
towards Ne'ela, some non religious soldiers came with their female 
officer. I went outside to explain to her that even though no women came 
this year, she is welcome to sit outside, and I gave her a chair and 
Mahzor. And that even that most of the prayers are wearing dark suits (we 
do not wear a kittul), a large percentage have been in the army. Well, for 
the children, that was quite interesting - a woman soldier carring a M 
-16, and praying.


From: Chana <Chana@...>
Date: Mon, Aug 30,2010 at 07:01 PM
Subject: Women Davening (was To the males of this list -)

Carl Singer <carl.singer@...> writes (MJ 59#05):

> Lastly, Ms. Lutz cites chapter and verse why she is obligated to daven
> -- it must be noted that there are other opinions re: time-dependent
> mitzvahs.  I'll let those with the Bar Ilan CD-Rom weigh in here.  
> (1) as to requirement to daven and 
> (2) whether and how one takes on this obligation if, indeed,
> not "required".

I will respond to Carl's last point first (the other points I hope to
comment on in another post).

I think it is important for people to see the sources inside, so you can
understand the parameters of the issue.

The first mention of the question is in the Mishna in Brachos 20a-b:

Mishna: Women, slaves and minors are exempt from reciting the Shema and from
tephillin, and obligated in tephila and in mezuzah and in grace after meals.
Gemara:  And obligated in tephila: since it is a seeking of mercy - what
might one have said?:  since it is written regarding it [Tehillim 55:18]
Morning and evening and noon time, it is like a commandment that is
dependent upon time, therefore [the Mishna needs to] teach it

Now a number of commentators (the Aruch HaShulchan included, and Rav Ovadiah
Yosef brings a number of others in Yabiat Omer volume 6 Orech Chaim siman
17) that the girsa [version] of the Rif and the Rambam did not have the
words "since it is a seeking of mercy", but it is clear that the version of
Rashi and the Ashkenazic school did.

As you can see, there is no equivocation here about the obligation of women
to daven.

Rashi (Brachot 20b) comments:

And obligated in tephila:  since tephila is a seeking of mercy and a
d'rabbanan [rabbinical enactment], and they established it even for women.

As you can see from this comment Rashi (and indeed Tosphos and the Ramban)
hold that tephila is completely rabbinic.

However the Rambam held differently.  He has a long discourse on the source
of the obligation of tephila in the first perek on hilchot tephila in which
he states, in summary, that tephila is a positive mitzvah from the Torah,
but that the Torah obligation was only to pray once a day, in whatever
wording one chose to use, so long as it included praises of HaShem and
requests and the like, and that since it was a positive mitzvah from the
Torah that is not dependent upon time, women (and slaves) are obligated in
it.  He then says that when Israel was exiled in the days of Nebucanezzar,
and they gave birth to children in foreign lands, the children grew up with
confused language they were no longer able to speak purely, and so were
unable to pray properly, and so Ezra and his beis din instituted a fixed
order of prayers, and a fixed nusach [wording].  And they also fixed the
times to utter such prayers, namely shachris, mincha and ma'ariv (he goes
into detail as to the link between these times and the korbanos).  And he
adds in Halacha 9 that one must not diminish from these prayers but that it
is permitted to add to them and pray the entire day (although he mandates
some changes so it is clear that these are not the obligatory prayers, see

And the Shulchan Aruch (Orech Chaim Hilchot Tephila siman 106 si'if 2) rules:

Women and slaves, even though they are exempt from reciting the Shema are
obligated in tephila, because it is a positive mitzvah which is not
dependent on time [mitzvat aseh shelo hazman grama]

Ie he brings the understanding of the Rambam, rather than that of Rashi and
the Ashenazic school.

So OK, all of this appears to all point in one direction which is,
regardless of whether you appear to hold like the Rif and the Rambam that
tephila is a Torah mitzvah (but one not dependent upon time) or like the
Ashkenazic school that it is a rabbinic mitzvah dependent upon time but that
the rabbis included women in the mitzvah, that women are obligated in

But, as you are all aware, most women just don't do this.

So the Magen Avraham (siman 106 si'if 2) deals with this discrepancy as follows:

A positive mitzvah:  So writes the Rambam that he holds that prayer is a
positive mitzvah from the Torah as it is written "and to serve with all your
hearts etc" but from the Torah it was enough once a day in any wording that
he wanted, and thus the custom of most women that they do not pray regularly
because they say immediately in the morning close to washing [the hands]
some request and from the Torah it is enough [merely to do] this, and it is
possible that also the Chachamim did not obligated them more, but the Ramban
holds that prayer is from the rabbis and so is the opinion of the majority
of poskim and see in Tosphot of Brachot page 20b and in the Smak that he
finds to pray in a time of trouble.

So you see here a possible suggestion of a leniency.  The Magen Avraham
starts by noting that if you hold like the Rambam that tephila is a positive
mitzvah from the Torah, then most women are in fact fulfilling their Torah
obligation by making some request in the morning.  Well though, what about
the rabbinic obligation that was instituted by Ezra and his Beis Din?  Well
*maybe* (the word he uses is efshar) the Chachamim didn't actually institute
all that for women (and that the Mishna when it refers to women being
obligated in tephila is talking only about the Torah obligation and not all
the rest of the bells and whistles, despite there being no mention to that
effect).  But he further notes that the majority of poskim (certainly of the
Ashkenazi school) held that in fact the obligation of tephila is rabbinic,
and of course if it is rabbinic, the Mishna must be talking about the
rabbinic obligation, in which case women are obligated in tephila just as
men are.

And hence rules the Aruch Hashulchan, the Shagas Arieh and others.  The
Mishna Brura, as I noted last time (106:4) has a wrinkle on this in relation
to ma'ariv.  Because everybody agrees that Ezra and his Beis Din, when they
instituted the formal tephilos, made shachris and mincha obligations and
ma'ariv voluntary, but that there was communal acceptance at some point in
time that made ma'ariv now obligatory.  The Mishna Brura says that this
communal acceptance was never made by and therefore does not apply to women,
i.e. the difference in opinion between the Mishna Brura and the Aruch
HaShulchan seems to be, are women in a class of their own, who need to make
a separate acceptance, or are they part and parcel of the general Jewish
community body, and when the general Jewish community accepts some minhag on
itself, that goes for women too?

But indeed there are some, in Ashkenazi circles, who quote the Magen Avraham
as the basis for justifying the practice of women who do not daven at all
except for some sort of request in the morning (I believe that Artscroll for
example brings the Magen Avraham).

When you think about it though, it is an extraordinary claim.  Where else
does one say that where women are considered equally obligated as men in
something from the Torah, the rabbinical enactments in relation to such
matter does not apply?  How about Shabbas, women are considered equally
obligated with men in the positive mitzvos from the Torah in relation to
shabbas.  Is it possible that they are exempt from all the rabbinical
shabbas mitzvos instituting how these mitzvos are performed (Kiddush, for
example), and only obligated in the Torah ones?

And, at least for Ashkenazim, the position is doubly complicated by the fact
that even the Magen Avraham's limud zchus [justification] only works if you
follow the position of the Rambam and the Rif, and while that appears to be
the position brought in the Shulchan Aruch, it is not, as the Magen Avraham
and other Ashkenazim note, the dominant position amongst Ashkenazi poskim,
who generally hold that tephila is a rabbinic enactment.

The position for Sephardim is a bit more complicated, because it is fair to
say that the dominant position for Sephardim would be that of the Rambam and
the Rif, ie that the essence of the obligation to pray is from the Torah. So
that gets you over hurdle number one.  And the second thing is this
difference in girsos [versions] of the gemora.

You see the Shagas Arieh in Shut 14 (and other places), as part of a long
discussion about this machlokus [disagreement] as to whether prayer is from
the Torah or not, is puzzled by the question as to why, if one held like the
Rambam, the gemora would need to bring the reasoning "it is a seeking of
mercy" (he clearly being unaware that the girsa of the Rambam and Rif was
different to ours, and omits these words).  And he answers that the reason
that these words are still necessary is to obligate women in all three
tephilos.  That is, there is the Torah obligation, but the rationale for the
rabbis extending their enactments to women was because of the fact that
women need mercy too.

And there are those (Rav Ovadiah holds this way, and he brings a number of
others who do), who therefore run the Shagas Arieh backwards. Since we now
know that the Rambam's girsa did not include these words, therefore the
Rambam indeed did not obligate women beyond the Torah obligation, and hence
women are obligated in at most one tephila a day, and in any wording (so
long as all the necessary elements are included).  (But argues Rav Ovadiah,
since it is difficult to guarantee that all the necessary elements are
included without using the language of the Chachamim, at least one Shmonei
Esrei a day is needed).

Now this is still all really rather difficult to read into the Rambam's
language, especially given his quite detailed explanation as to why Ezra and
his Beis Din felt the need to institute fixed prayers, given the confusion
of languages etc, which surely applied to women too.  And it is rather hard
to believe that if the Rambam had meant this he would not have said it.

And yet another problem with this logic is that, while it is indeed quite
likely that the Rambam and the Rif were unaware of the alternative girsa
with the words relating to mercy, the same cannot be true for the Shulchan
Aruch himself, because in the Beis Yosef he brings (and indeed only brings)
the alternative girsa and Rashi's comment on it.  Rav Ovadiah is thus forced
to say that the Shulchan Aruch retracted between writing the Beis Yosef and
writing the Shulchan Aruch, and decided to follow the Rambam over and above

However one could just as well say that in fact the Shulchan Aruch agreed
with the Shagas Arieh.  That is, he held like the Rambam that the essential
requirement was from the Torah, but knowing the gemora with the version
referring to mercy, he understood that to obligate women in prayer three
times a day.  However, since there was nothing in the language of the Rambam
that undermined that position, he brought the language of the Rambam in the
Shulchan Aruch.

And finally, running the Shagas Arieh backwards does not seem to me as a
matter of logic to inevitably get you to where you want to go.  Even if one
understands the gemora's hava amina [preliminary hypothesis - MOD] the way the
Shagas Arieh understood it, using the girsa he had, if you take those words out,
it is quite possible to understand the gemora's hava amina quite differently. 
That is, what is the hava amina of the gemora under the Rambam's version - well
simply that in fact tephila is indeed rabbinic (ie the conclusion of the
Ashkenazi school), and derived (an asmachta) from the pasuk in tehillim
regarding morning, night and noon.  In which case the maskana [conclusion] is
that in fact it is not a positive rabbinic mitzvah dependent upon time but a
positive Torah mitzvah independent of time, in which case all the rabbis did
was, as they generally do, be metaken [institute] the drabbanans as applying to
all of those to whom the Torah mitzvah applies (in a similar way to Kiddush on
shabbas etc).

Still, leaving logic aside, women who follow Sephardi psak have much
stronger names and fewer hurdles to justify a practice of not davening three (or
two) times a day.

Note, I have heard yet another justification for women not davening, brought
by Rav YH Henkin (although he stressed it was not his chiddush, but he
brought it in the name of somebody else whom I do not remember), that while
women are indeed obligated in davening, in the times of the gemora, it was held
that if one could not concentrate properly on tephila, one need not do it
(if one was going on a trip, for example).  Men have unquestionably
abandoned that position, holding that proper kavanah is so difficult these
days, that if one held by this one would never daven, and so men have
accepted upon themselves the obligation to daven whether they are able to
have proper kavanah or not.  He argues however that women never accepted
this, and hence women who are too busy with children to concentrate do not
daven because they cannot concentrate properly.  Certainly this does not
work if one holds that men and women are part and parcel of the same klal
yisroel that accepts things together, but if you do see women as a separate
class, then this argument may hold some validity, although how far it
extends (ie to women at times when they do not have, or are not looking
after, small children) is something of a question.  Again though, this is
not the position of the major poskim in Ashkenaz, such as the Mishna Brura
and the Aruch HaShulchan who are unequivocal about women's obligation to

Kind Regards



End of Volume 59 Issue 10